JUSTICE (R) NISAR MUHAMMAD SHAIKH, CHAIRMAN. The appellants being concerned citizens have filed this appeal under section 27 of Sindh Environmental Protection Act, 2014 (Act 2014), challenging the approval of "Development of Beach" (Project) at Phase V Extension, DHA Karachi, accorded by respondent No.1-Sindh Environmental Protection Agency (SEPA) in favour of respondent No.2-Cantonment Board Clifton (CBC) in an Initial Environmental Examination (IEE), alleging that such IEE approval dated 19.02.2020 is violative of the provisions of the said Act as well as Sindh Environmental Protection Agency (Review of Initial Environmental Examination and Environmental Impact Assessm ent) Regulations, 2014 (Regulations 2014), on the ground that such project requires filing of Environmental Impact Assessment (EIA).
2. We have heard arguments of the parties and perused relevant record.
3. The common contention of learned counsel for respondent No.2 (CBC) as well as learned Law Officer of respondent No.1 (Agency), is that this appeal is badly time barred as the same was filed on 12.11.2020 after the delay of about eight months of impugned decision dated 19.02.2020 though the period of limitation as provided under section 27 of the Act, 2014 is 30 days only, therefore, on this ground alone the instant appeal is liable to be dismissed as the false excuses made by appellants in their appeal deserve no consideration.
4. The contention of learned counsel for appellants, on the other hand, is that the appellants first time came to know in July, 2020 about impugned approval of IEE through daily Dawn newspaper of 05.07.2020 and then they approached respondent No.1 on 15.07.2020 with an application for supply of the copy of IEE report and order of its approval and again on 19.08.2020 they made a reminder and in the meantime they had also been approaching respondent No.1 and lastly they succeeded on 15.10.2020 when they were given the copy of impugned decision dated 19.02.2020 and then they filed this appeal on 11.11.2020 within time of 30 days and as such there was no delay on their part.
5. The relevant section 27 of the Act, 2014 provides that any person aggrieved by any order or direction of the Agency may prefer an appeal within 30 days of date of communication of the impugned order or direction to such person. In this regard the appellants along with their appeal have annexed the copy of news report, their application dated 15.07.2020 and its reminder dated 19.08.2020 for supply of copy of IEE report and its approval. Such application as well as reminder bear the signatures with stamp of the receiving section of the Agency. The receipt of these application and reminder are nowhere denied by respondent No. 1. The assertion of appellants made in para 9 of appeal that after several visits in the office of respondent No.1 they succeeded in getting the copy of approval on 15.10.2020, is replied by respondent No.1 in para 9 of parawise objections that "the appellant has received copy of decision by hand from the office." This reply cannot be termed to be a denial, rather it is an admission of appellants' version by the concerned respondent No.1. So nothing more is needed to establish the appellants' stance on the point of limitation and accordingly, this appeal is held to have been filed within prescribed time of 30 days of the communication of the impugned decision to the appellant party.
6. Regarding the controversy between the parties on the applicable Schedule and relevant Category of the project, the contention of learned counsel for appellants is that the project requires EIA as it is falling under entry (4) and (5) of category "I" namely "Urban Development and Tourism" and entry (2) of category "K" in respect of the project likely to cause an Adverse Environmental Effect, which are the categories listed for the projects requiring EIA under Schedule-II of the Regulations, 2014. He maintained that though the project did not fall in any of the categories listed for the projects requiring IEE under Schedule-I yet the impugned approval of IEE based on category "K" of Schedule-I read with sub-regulation (2) of Regulation 6, is patently illegal in absence of mandatorily required recommendations of the Committee which was never constituted in compliance of regulation 24 of the Regulations, 2014 and on this contravention of relevant law the impugned decision of approval is liable to be set-aside being of no legal effect. In support of his contentions he also placed reliance on a D.B decision of Honorable High Court of Sindh passed in the case of Salim Godil and others v. Province of Sindh and others reported as 2014 CLD 222. He referred its relevant portion from page 254 as under: Though sub-regulation (2) of Regulation S empowers the Federal Agency to direct the proponent of a project, whether such project is listed in Schedule I or II, or not, to file an IEE or EIA after recording its reasons for such direction. However, proviso to sub-regulation (2) to Regulation 5 places a clog on the exercise of such power by providing that Federal Agency shall not exercise such powers unless the Environmental Assessment Advisory Committee constituted under Regulation 23, has so recommended.......
In our opinion power under sub-Regulation (2) of Regulation 5 or entry J to Schedule-II can only be exercised by the Agency when it comes to the conclusion that notwithstanding the fact that a particular project though has not been categorized in any of the schedules annexed to Regulations 2000 but still is likely to cause an adverse environmental impact and a recommendation to that effect has been made in writing by the Environmental Assessment Advisory Committee then and then only the proponent of a project upon detailing the reasons can be directed to file IEE or EIA.
It is clarified by appellants' counsel that the words/figures used in the above portion of the judgment, such as Regulations 5, 23, Regulations 2000, entry 'J' and Federal Agency, may be read as Regulations 6, 24, Regulations 2014, entry "K" and Provincial Agency, because of some modification made on the enactment of Sindh Environmental Protection Act, 2014 in place of Pakistan Environmental Protection Act, 1997 after 18th amendment in the Constitution.
7. The learned law officer of respondent No.1 submitted that the project of respondent No.2 is not a mega project so as to require EIA but since it is a small project, therefore, the IEE study report filed by respondent No.2 was duly approved under category "K" of Schedule-I read with sub-regulation
(2) of Regulation 6 of Regulations, 2014. He also contended that even otherwise such approval is not absolute but is subject to certain conditions and in case of violation of any condition the approval would liable to be cancelled and therefore, the objection of appellants on the approval of the project in an IEE has no force in law.
8. Whereas, the learned counsel for respondent No.2 contended that the project does not fall in any category of the projects listed in Schedules I, II or III nor respondent No.2 was directed or required by respondent No.1 to file IEE or EIA but it was in good faith that the respondent No.2 voluntarily filed IEE study report as a precautionary measure otherwise, no provision of the Act or Regulations, 2014 calls for filing of an EIA or even IEE for the projects like the one under objection and therefore, the case law as relied upon by learned counsel for appellants is irrelevant and not applicable to this case.
9. Perusal of the case file of respondent No.1 which was also summoned, shows that on 18.12.2019 they received an application (dated 13.12.2019) along with a filled in application form, cheque of Rs.
1,00,000/- as review fee and the IEE report filed by respondent No.2's Chief Engineer as a proponent of the project. The IEE report for the project of which the impugned approval was accorded by the Agency on 19.02.2020, describes in its Chapter-I of Introduction, under the title "Categorization of Projects," in the following manner: "The proposed beach development is being carried out over an area of about 20 acres. Project can be categorized under Schedule-I as follows: "K". Other projects.
Any other project for which filing of an IEE is required by the Agency under Sub-Regulation (2) of Regulation 6.
The IEE of the project is thus being carried out."
10. Whereas, the Director General for respondent No.1, in his parawise objections to the appeal also stated at para-C that "the project is categorized in IEE study under category (K). Any other project for which filing of an IEE is required by SEPA under sub-regulation (2) of Regulation (6) and approval was issued thereof." Likewise, the C.E.O for respondent No.2 also referred category "K" in paras 5 and 20 of his objections. However, he has nowhere stated in his detailed objections if they were not directed or required to file IEE and they voluntarily filed the IEE and their project did not fall in any category listed in schedule I, II or III, as claimed in arguments.
11. As embodied in relevant provisions of law, there are many projects of various nature listed in categories A to J of Schedule-I requiring IEE, and as per category "K" other projects also require filing of an IEE under regulation 6(2) of Regulations, 2014 and accordingly, category "K" is exclusively dependent upon sub-regulation (2) which, along with sub-regulation (3) of Regulation 6, is reproduced below:
(2) Notwithstanding anything contained in sub-regulation (1), the Agency may direct the proponent of a project, whether or not listed in Schedule I or II or III, to file an IEE or EIA or environmental check list, for reasons to be recorded in such direction: Provided that no such direction shall be issued without the recommendations in writing of the Committee.
(3) The provisions of section 17 shall apply to a project in respect of which an IEE or EIA or environmental checklist is filed under sub-regulation (1) or (2).
12. It is visualizable from above that compliance of sub-regulation (2) ibid is not possible without following its Proviso on the point of recommendations of the Committee and admittedly, there are no recommendations of the Committee and even no such Committee is shown to have been constituted. The Committee as defined in Regulation 2(c) of the Regulations, 2014 means the Environmental Assessm ent Advisory Committee constituted under Regulation 24 which reads as follows:
24. Environmental Assessment Advisory Committee.-- For the purpose of rendering advice on all aspects of the environmental assessment including guidelines procedure and categorization of projects, the following Advisory Committee shall be constituted:-
(i) Director Technical, Sindh Environmental Chairman Protection Agency (EIA/IEE)
(ii) Chief Environment, Planning and Member Development Department
(iii) Four representative on each of industry, Members non-Governmental organization, legal and other experts
13. It is therefore manifest that the embargo imposed upon by the Proviso to Sub-Regulation (2) of Regulation 6, in absence of the recommendations of the Committee, makes entire exercise of filing an IEE report and its review process redundant and of no legal effect deserving for the reverse of the matter for compliance of the relevant provisions of the Act, 2014 and the Regulations made thereunder. Accordingly, the overstepped plea of respondent No.2 that the IEE was not required from them by the Agency nor any direction was given for filing IEE, is misconceived in the circumstances of this case and even otherwise, when they had already followed a part of the direction given in the relevant provisions of law by filing required Application Form, Review fee, IEE report etc. then they were not required to be given any more direction for the compliance of which they had already made by themselves. The admission made in IEE report that their project comes within the purview of category "K" of schedule-I, by itself requires compliance of Regulation 6(2) being solely dependent on it, which is not the requirement of any project falling in category A to J.
Thus, Regulation 6(2) comes into play as soon as the category "K" is applied. In the circumstances, the interpretation of Sub-Regulation (2) of Regulation 6, made in the cited case law as reproduced in para 6 above, is also relevant to this case.
14. The next contention of learned counsel for appellants on another legal point is that the impugned decision of IEE approval being a quasi-judicial and appealable order could only be passed and signed by the Director General of the Agency but the same has been signed by a E.
Deputy Director without lawful authority as he was not competent to do so, therefore, the impugned decision is not sustainable in law. In this regard, the contention of learned law officer of the Agency is that since the decision was issued after the approval accorded by the Director General, therefore, it was within four corners of law. Likewise, learned counsel for respondent No.2 contended that the approval was based on a detailed IEE report hence the same was issued in accordance with law.
15. It is an established principle of law that when a particular thing is required to be done in a particular manner it must be done in the same prescribed manner. Adhering to this principle, it would be advantageous to refer relevant provisions of law for a better appreciation of the proposition advanced by the parties. Sub-regulation (2) of Regulation 13, ibid provides that on completion of the review, the decision of the Agency shall be communicated to the proponent in the form prescribed in Schedule-VI in the case of IEE. The prescribed form given in the shape of Schedule-VI also shows below the space of signature, as under: Director General Sindh Environmental Protection Agency (with official stamp/seal)
But, in the impugned decision lying in original in, the case file of the Agency, there is no such official stamp or seal affixed on the impugned decision consisting of four pages, except a seal of outward number and date, of the office of Regional Director, SEPA at the upper portion of the first page of decision. This decision does not bear the signature of the Director General; rather it is signed by Deputy Director, (Technical-VI) for Director General. Surprisingly, its last sentence having been made a part of the decision reads: "This is issued with the approval of Director General Sindh E.P.A."
In this connection no provision of law has been pointed out if the Deputy Director was empowered to sign the impugned decision or such discretionary and quasi-judicial powers could be delegated to him. It appears from subsection (1) of section 5 of the Act, 2014 that the Environmental Protection Agency was established to exercise powers and perform the functions assigned to it under the said Act and the Rules and Regulations framed thereunder. As per subsection (4) such powers and functions shall be exercised and performed by Director General. Subsection (5) empowers the Director General to delegate any of these powers and functions to the staff of the Agency. Such functions and powers are enumerated in sections 6 and 7 of the same Act. But there is nothing to empower the Director General to delegate the powers to any of staff members to sign on his behalf the order or decision in terms of Regulation 13(2) of Regulations, 2014. Sub-Regulation (2) specifically mentions "the decision of the Agency." Thus, the Director General cannot delegate such powers of the Agency to any staff member unless empowered to do so under the statute. The decision made in terms of Regulation 13(2). is to be delivered and issued in compliance of section 17 of the Act, 2014 and its violation constitutes an offence punishable under section 22 of the same Act. So such decision made and issued in terms of Regulation 13(2) is admittedly an appealable order. Clause (a) of subsection (2) of section 17 further empowers the Agency to review IEE and accord its approval or require submission of an EIA. Such discretionary powers cannot be exercised without application of mind. Whereas, Sub-regulation (2) of Regulation 6 empowers the Agency to direct the proponent of a project to file an IEE or EIA or G. ECL, for the reasons to be recorded in such direction. Such reasons cannot be recorded without due consideration and justification. The discretionary and quasi-judicial powers are defined in detail by Honorable Supreme Court of Pakistan in the case of Zahid Javed v. Tahir Riaz Chaudhry reported as PLD 2016 SC 637 which also provides that quasi-judicial powers could not be delegated and were to be exercised by persona designate mentioned in the statute. In another case of Messrs Fun Infotainment Network v.
PEMRA and others reported as PLD 2019 Lahore 486 it was held that the decision of quasi-judicial authority requires signature of the authority delivering that decision. The Law laid down in these authorities is also relevant to the case in hand.
16. In view of the legal aspects of this appeal as discussed above, we find that the impugned decision of IEE approval dated 19.02.2020 is not sustainable in the eyes of law and therefore, without dilating upon the merits of this case relating to the factual controversy, the impugned decision is hereby set-aside and the matter is remanded to respondent No.1-Agency with direction to decide the same afresh in accordance with law. Accordingly, this appeal is disposed of with no order as to cost.